ALJDEC decisions subject to certification as final

09F-2180-ROC · Registrar of Contractors · 2009-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2009 at 9:00 a.m. APPEARANCES: Complainant United Air Conditioning Heating and Cooling, LLC did not appear; Respondent Fusion Design and Development LLC appeared through Jeffrey Jerome Meyers and Sookie Rene Meyers, Members. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On October 1, 2003, the Registrar of Contractors (“the Registrar”) issued License No. ROC189301, Class K-39 for dual air conditioning and refrigeration to Complainant United Air Conditioning Heating and Cooling LLC, a limited liability company. On January 20, 2006, the Registrar of Contractors issued License No. ROC215782, Class KB-01 for dual building contracting to Respondent Fusion Design and Development, LLC, a limited liability company. On November 10, 2008, the Registrar received a complaint against Respondent’s license from Complainant. The complaint alleged that Respondent had failed to pay Complainant $34,000.00 for work performed under six separate subcontracts. Complainant provided its address on the complaint form as 3334 W. Wilshire #40, Phoenix, AZ 85009, which is the same as Complainant’s address of record with the Registrar. The Registrar referred the complaint to Respondent for its immediate attention. On October 31, 2008, the Registrar received Complainant’s request that a citation be issued against Respondent’s license. On March 11, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(7), (11), (15), and (13) (namely A.R.S. § 32-1124(B)). On March 25, 2009, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any statutory violation and asserted various affirmative defenses. The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for the scheduling of a fair hearing. On April 24, 2009, the Registrar issued a Notice of Hearing, setting a hearing on August 10, 2009 at 9:00 a.m. at the Office of Administrative Hearings. The Registrar mailed a copy of the Notice of Hearing to Complainant at 3334 W. Wilshire #40-41, Phoenix, AZ 85009. Respondent’s representatives appeared for the duly noticed hearing on August 10, 2009. Although the Administrative Law Judge delayed the beginning of the hearing fifteen minutes to allow Complainant additional travel time, it neither appeared, through a duly authorized representative or an attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence to establish its complaint against Respondent. CONCLUSIONS OF LAW The dispute lies within the Registrar’s jurisdiction to resolve.[1] The Notice of Hearing that the Registrar mailed to Complainant at the address it provided on its complaint, which was the same as its address of record, was reasonable. Complainant is deemed to have received the Notice of Hearing.[2] Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[3] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to support its claim precludes any finding of a statutory violation against Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order, the Registrar dismiss Case No. 09-2180 against Respondent Fusion Design and Development LLC’s License No. 215782, Class KB-01. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, August 10, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of August, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826